S. 57 J&K Housing Board Act | Provision Of Prior Notice Never To Non-Suit Litigant, But To Allow For Settlement & Avoid Unnecessary Litigation: High Court

Expounding on the mandate of Section 57 of the Housing Board Act which provides for notice Justice Sanjay Dhar observed,

“The purpose of giving prior notice for filing of the suit under Section 57 of the Act can never be to non-suit a litigant on technical grounds. Its purpose is only to give the Housing Board and its officers an opportunity to re-consider the legal position and to make amends and settle the claim of the proposed plaintiff so that public money and time is not wasted on unnecessary litigation”.

Background:

The case involved a land dispute between Harbans Kour and the J&K Housing Board. Kour claimed ownership of the land through a sale deed and sued the Housing Board to prevent them from interfering with her possession. The trial court dismissed the case on the grounds that Kour failed to serve a prior notice on the Housing Board as mandated by Section 57 of the J&K Housing Board Act.

Kour appealed the decision, arguing that she had served a notice during an earlier lawsuit that was withdrawn. The first appellate court agreed and held that the question of whether the suit land fell under the Board's jurisdiction was a mixed question of fact and law that could only be decided after a trial.

The Housing Board then appealed to the High Court, arguing that the suit was not maintainable due to the lack of a notice and the bar on jurisdiction under Section 44 of the Act.

Observations Of The Court:

Dealing with the first contention of the appellant Housing board that the suit was not maintainable due to the bar on jurisdiction under Section 44 of the Act, Justice Dhar clarified that Section 44 only barred suits related to eviction, rent recovery, or actions taken by the Board under the Act.

Since the question of ownership of the land was disputed, the court held that it could not be determined at the preliminary stage whether Section 44 applied.

“Therefore, the learned 1st Appellate Court is right in holding that the question as to whether the suit is barred under Section 44 of the J&K Housing Board Act, is a mixed question of fact and law, which can be decided only after trial of the case”, the bench reasoned.

On the notice provision, Justice Dhar observed that the purpose of Section 57 was to inform the Housing Board about potential claims and allow them to address them before litigation.

“The aim of Section 57 of the Act is to advance the cause of justice and to give an opportunity to the Housing Board to examine the claim made by the plaintiffs against them lest they should be drawn into avoidable litigation”,the bench underscored.

In view of these observations the High Court upheld the first appellate court's decision, allowing the case to proceed. The trial court was directed to decide the issue of jurisdiction and the applicability of Section 44 based on evidence presented during the trial.

Case Title: J&K Housing Board Vs Smt Harbans Kour.

Citation: 2024 LiveLaw (JKL) 39

Click Here To Read/Download Judgment